Narrative and Generalizations in Argumentation about Questions of Fact
![handle is hein.journals/stexlr40 and id is 361 raw text is: NARRATIVE AND GENERALIZATIONS IN
ARGUMENTATION ABOUT QUESTIONS OF
FACT*
WILLIAM TWINING**
A familiar feature of academic life is the phenomenon of two or
more bodies of literature talking past each other, even though the
problems and issues they address seem to be closely connected.
Within the discipline of law, a striking example is the almost entire
separation of literature and debates concerning argumentation about
questions of law on the one hand, and questions of fact on the other.
The term legal reasoning has been imperialistically hijacked for the
former by jurists who seem to know little or care less' about the latter,
which has been variously referred to as the logic of proof, evidence
and inference, fact determination and so on. Ronald Dworkin
does not concern himself with Bayes Theorem; Bayesians and
inductivists alike do not concern themselves much with Dworkin or
other theorists of legal reasoning. Yet every lawyer knows
distinguishing between questions of law and questions of fact is
problematic, contingent, and often unsustainable. Surely issues about
the validity, cogency, and appropriateness of reasoning about
questions of law and questions of fact are intimately related aspects of
* This paper is one of a series resulting from an ongoing project of an international
group of scholars that worked together at the Netherlands Institute of Advanced Study on
Criminal Justice in Wasenaar in 1994-1995. Other members of the group are Professor
Hans Nijboer (Leiden), Dr. Jelte Heilkema (Rotterdam), Dr. Marijke Malsch (Leiden),
and Professor Terence Anderson (Miami). The paper grew out of many discussions in the
group. This version is adapted from an essay published in UPPSALA, FESTSKRIFr TILL
STIG STROMHOLM (Ake Frindburg ed. 1997). It draws in part on earlier papers, especially
William Twining, Civilians Don't Try: A Comment on Mirjan Damaska's Rational and
Irrational Proof Revisited, 5 CARDOZO J. INT'L & COMP. L. 69 (1997) [hereinafter
Civilians Don't Try] and William Twining, Anchored Narratives-A Comment, 3 EUR. J.
CRIME, CRIM. L. & CRIM. JUST. 106 (1995) (book review) [hereinafter Anchored
Narratives-A Comment]. Further, it anticipates parts of William Twining, Necessary but
Dangerous: The Role of Stories and Generalizations in Legal Proof in COMPLEX CASES
(Hans Nijboer & Marijke Malsch, forthcoming 1999) which explores the same themes in
more detail, with special reference to the Netherlands.
**University College London.](ViewImageLocal?handle=hein.journals/stexlr40&div=25&collection=&method=preview&ext=.png&size=3)
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Narrative and Generalizations in Argumentation about Questions of Fact
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